George v Board of Educ. of the City Sch. Dist. of the City of N.Y. · George v Board of Educ. of...
Transcript of George v Board of Educ. of the City Sch. Dist. of the City of N.Y. · George v Board of Educ. of...
George v Board of Educ. of the City Sch. Dist. of theCity of N.Y.
2013 NY Slip Op 30615(U)March 27, 2013
Sup Ct, New York CountyDocket Number: 103527/2012
Judge: Kathryn E. FreedRepublished from New York State Unified Court
System's E-Courts Service.Search E-Courts (http://www.nycourts.gov/ecourts) for
any additional information on this case.This opinion is uncorrected and not selected for official
publication.
NNED ON41112013
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
~
Index Number: 103527/2012 GEORGE, MANDY vs . NYC BOARD OF EDUCATION SEQUENCE NUMBER : 001 ARTICLE 78 cf i L 4 3 L
INDEX NO.
MOTION DATE
MOTION SEQ. NO.
The following papers, numbered 1 to , were read on this motion to/for
Notice of MotionlOrder to Show Cause - Affidavits - Exhibits
Answering Affidavits - Exhibits
I No(s)-
I Noh).
Replying Affidavits I N O W
Upon the foregoing papers, it is ordered that this motion is
, J.S.C.
MAR 2 ?' 2013 h&fiATmY i.l P&ED JUSTICE OF S f l m 1. CHECK ONE: ..................................................................... CASE DISPOSED NON-FINAL DISPOSITION
2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED 0 DENIED GRANTED IN PART OTHER
3. CHECK IF APPROPRIATE: ................................................ SETTLE ORDER
a DO NOT POST FIDUCIARY APPOINTMENT REFERENCE
SUBMIT ORDER
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Petitioner,
-against-
BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, and DENNIS M. WALCOTT, as the Chancellor of the City School District of the City of New York,
DECISION/ORDER Index No.: 103527/2012 Seq. No.: 001
PRESENT: Hon. Kathryn E. Freed
J,S,C.
r'
Respondents.
For a Judgment Pursuant to Article 78 of t h e F \ L E New York Civil Practice Law and Rules.
---______--"__r"__-_"-----------------"~"----------------"-"----------
HON. KATHRYN E, FREED:
RECITATION, AS REQUIRED BY CPLR $22 IN THE REVIEW OF THIS MOTION.
PAPERS NUMBERED
NOTICE OF PETITION AND AFFIDAVITS ANNEXED .................. ...... 1-2 ......... ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED ......... ANSWERING AFFIDAVITS ............................................................. ......... 3 .......... REPLYING AFFIDAVITS ................................................................. ........ .4 .......... EXHIBITS ........................................................................................... ...................... STIPULATIONS.. ............................................................................... ...................... OTHER ...............( memos of law) ........................................................ ....... 5,6 ..........
.....................
UPON 'THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THIS MOTION IS AS FOLLOWS:
Petitioner seeks an Order pursuant to Article 78 of the Civil Practice Law and Rules for an
Order nullifying her teaching evaluation rating of Unsatisfactory, as affirmed on administrative
appeal, based on the fact that respondents failed to perform a duty enjoined upon them by law and
engaged in conduct that was in violation of lawful procedure, was affected by an error of law, was
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arbitrary, capricious and an abuse of discretion. Petitioner also seeks to have said rating changed to
Satisfactory, forthwith.
Respondents oppose. After a review of the papers presented, all relevant statutes and case
law, the Court grants the motion.
Factual and mocedural background:
Petitioner is a tenured teacher, employed by respondent Board of Education, since October
2000. During the 2010-201 1 school year, she was assigned to Ronald McNair School- PS 147,
located in Queens, New York. According to petitioner, during the subject year, “there were no
formal observations completed during the entire school year, and thus, there were no observation
reports created.” On June 16, 201 1, at the end of the school year, petitioner was given an
“unsatisfactory” rating ( hereinafter, “U-rating”), on her Annual Pedagogical Performance Review
( hereinafter “APPR’). Said APPR was devoid of any documentary support substantiating this
rating.
Consequently, petitioner timely appealed the U-rating, and her appeal was then scheduled
for February 14,2012. Petitioner alleges that from the time she received the subject U-rating on
June 16,20 1 1, until the subsequent appeal, respondent never provided her with any documentation
supporting its allegations, However, on the day of the actual review, and for the first time,
respondent alleges that respondent provided her with a memorandum prepared by Principal Anne
Cohen, which contained some evidentiary support for the U-rating. The date of this letter was June
30,201 1, and therefore, was clearly created after the U-rating was established. Petitioner is adamant
that she never received this letter prior to her appeal of the U-rating. The letter does not contain any
acknowledgment of receipt by her.
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During the review, and despite petitioner’s objections, the Chancellor’s Chairperson
permitted Ms. Cohen to testify concerning the undocumented allegation that petitioner’s class room
was lacking in organization and cleanliness. Petitioner asserts that she was never previously
apprised of this allegation prior to February 14,2012, and that it was never referenced in the June
16,2012 APPR, During the review, Ms. Cohen conceded that petitioner was never advised of this
allegation, and that no formal written document regarding any observation that was conducted,
supporting the U-rating, was ever provided to petitioner.
However, the Chancellor’s Designee, Senior Deputy Chancellor Shael Polakow-Suransky,
denied the petitioner’s appeal of the U-rating for the 20 10-201 1 school year via letter dated April 13,
2012. The U-rating was sustained “as a consequence of refusing to accept the substantial and
ongoing support offered by the administration which prevented the [administration] from evaluating
[petitioners] performance on an acceptable level.”
According to respondents,“petitioner received her U-rating based on several areas of
weakness in her performance that, despite efforts of the administration to provide developmental
support throughout the school year, she did not improve on” ( Exhibit 2 appended to Verified
Answer at 5-1 1). Respondents also assert that throughout the school year, petitioner was provided
with professional support and coaching, which included observations and suggestions emanating
from both a literary coach and a math coach, for the purpose of assisting her in her development.
However, after working with her, these coaches reported to the Principal that petitioner was reluctant
to accept any assistance, and that based on her uncooperative behavior, they would prefer not to work
with her in the future. These types of reports were issued frequently throughout the school year.
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Respondents also assert that during an informal visit to petitioner’s classroom, Principal
Cohen personally observed a chart depicting grammatically incorrect writing. Despite the fact that
petitioner was advised of this, the same chart was observed during subsequent informal visits, as was
also a public bulletin board displaying students’ error laden work, When this was brought to
petitioner’s attention, she responded, “DO you expect me to correct twenty nine papers?”
Additionally, during a quality review in May 20 1 1, the superintendent observed petitioner’s
class and noted a lack of differentiated instruction and the use of differing avenues to convey similar
ideas and concepts. Consequently, the superintendent gave the school a rating of “developing,” and
noted that the low level of teaching he specifically observed in petitioner’s classroom, greatly
contributed to this overall rating. The final rating for the 2010-201 1 year indicated that 3 1% of
petitioner’s students failed to meet the promotional criteria on the Mathematics examination and
34% failed to meet the promotion criteria on the ELA examination.
Respondents further allege that when several members of the instructional cabinet went to
petitioner’s classroom to help her clean prior to a quality review, she was not present and they
observed moldy material, food containers, half eaten food, debris, dust, insects and disorganized
desks.
Respondents concede that petitioner did not receive written criticisms of her deficiencies.
However, they assert that she did receive verbal feedback consisting of constructive suggestions, and
other types of assistance throughout the school year, which they perceive as sufficient notification.
Despite this continuous feedback, her performance did not improve, necessitating the subject U-
rating. Respondents further assert that during the hearing, neither petitioner nor her advisor refuted
Principal Cohen’s various allegations.
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The Court notes that in her testimony before the Chancellor’s Committee, Principal Cohen
admitted that she personally did not keep a log indicating what assistance was provided to petitioner,
nor did she possess written records of any classroom observations that were made by anyone during
the year. Furthermore, she admitted that petitioner was never advised that she would ultimately
receive an unsatisfactory rating for the year.
Positions of the Darties:
Petitioner alleges that respondents violated several specific formal review procedures
promulgated by the Ratings Handbook. She appends as her Exhibit “C,” the Chancellor’s Special
Circular No. 45. Petitioner explains that section 102.2(0)(a) ofthe New York State Commission of
Education Regulations ( hereinafter “Regulations”), requires that a school district adopt formal
procedures for annual reviews. Thus, respondents issued “Chancellor’s Special Circular No. 45,”
( hereinafter, “Circular 457, which states that the “formal procedures” which comply with the
Regulations and are to be utilized for the rating of pedagogical staff members shall be detailed in a
handbook published by respondents’ Division of Human Services, entitled “New York City Public
Schools, Rating Pedagogical Staff Members,” ( hereinafter, “Handbook”).
Petitioner also asserts that as promulgated by said Handbook, respondents’ own procedure
for rating pedagogical staff members emphasizes that “due to the serious implications of adverse
ratings and the imperative to provide satisfactory pedagogical services to students, the need to
document the evaluation of an employee’s performance is essential” ( see “Foreword,” appended as
Exhibit “C” in petition). Additionally, the Handbook states that the procedure also requires that,
“the overall evaluation of the employee’s performance requires a careful review of the documents
in the file. This thorough analysis is essential since the reasons for an adverse rating should be
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reflective of and supported by the written criticisms noted in the file documents” ( Exhibit “Cy” at
Pg* 10).
Petitioner now argues that since her U-rating was not predicated on any documentation
contained in her personnel file or derived from any other source in clear violation of the Handbook,
it was issued without any legitimate reason or basis, and thus, must be changed forthwith.
Respondents argue that the decision to sustain petitioner’s U-rating was neither arbitrary nor
capricious, and that petitioner has not been deprived of any substantial right in the affirmance of the
U-rating. They also argue that a court may not substitute its own judgment for that of an
administrative agency, and must affirm that agency’s decision when a rational basis for it exits in
the record to support it. Respondents additionally argue that petitioner’s position that the U-rating
has no basis because it was not accompanied by any supporting documentation, lacks merit in that
hearsay evidence on its own, can form the basis of an administrative determination.
Conclusions of law:
It is well established that a judicial review of an administrative determination is limited to
the grounds invoked by the agency at the time of its determination ( Matter of Aronskv v. Board of
Educ. Community School Dist. No. 22 of City of NY, 75 N.Y.2d 997,1000 [ 19901 ). A court must
uphold an agency’s exercise of discretion unless it lacks a rational basis ( Pel1 v. Board of Ed.of
Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester Countv, 34
N.Y,2d 222,23 1 [ 19741 ). “The judicial function is exhausted when there is to be found a rational
basis for the conclusions approved by the administrative body” ( SulIivan Countv Harnass Racing
Ass’n v. Glasser, 30 N.Y.2d 269,277-278 [1972] ).
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In reviewing an administrative agency’s determination to ascertain whether it is arbitrary and
capricious, the test is whether the determination “is without sound basis in reason and is generally
taken without regard to the facts” ( Pell v. Board of Ed. of Union Free School Dist. No. 1 of Towns
of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d at 231; see also Mankarios v. New
York City Taxi and Limousine Com’n, 49 A.D.3d 3 16,3 17 [lst Dept. 20081; Soh0 Alliance v. New
York State Liauor Authority, 32 A.D.3d 363, 363 [lst Dept. 20061; Kenton Associates. LTD v.
Division of Housing & Community Renewal, 225 A.D.2d 349 [lst Dept. 19961; Peckham v.
C a l o m , 12 N.Y.3d 424,431 [2009] ).
Where the determination is rational and the administrator has not acted in violation of lawful
procedure, arbitrarily, or in abuse of its discretionary power, the courts must confirm the
determination ( see Pell v. Board of Ed. of Union Free School Dist. No. 1 of Towns of Scarsdale &
Mamaroneck. Westchester County, 34 N.Y.2d at 23 1 ; see also Budnick v. New York City Dept. of
Educ., 25 Misc,3d 1235(A), 2009 N.Y. Slip Op. 42425(U) [Sup. Ct. N.Y. County, 20091 ).
Teacher evaluations and appeals of Unsatisfactory Ratings must be conducted in compliance
with the formal procedures promulgated pursuant to Section 100.2 (0) of the New York State
Commission of Education Regulations. In the City of New York, these procedures are set forth
primarily in two Handbooks prepared by the Division of Human Resources. These are “Rating
Pedagogical Staff Members” and “The Appeal Process.” The Rating Handbook emphasizes the
importance of completing evaluations based on documents contained in a teacher’s file. The “Appeal
Process” requires, inter alia, that prior to the hearing, the teacher “be furnished with a complete set
of the documentation used by the Rating Officer to support the reason(s) for the adverse rating ‘‘
( see Section A 2).
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In the case at bar, the Court has reviewed the aforementioned Ratings Handbook. At page
3, Part I1 is entitled “Evaluation and Rating.” Section A of this Part is entitled “Mandate and
Timing.” It references, inter alia, Section 89, Subdivision 7 and 7a of the New York State
Commission of Education’s Regulations that addresses evaluations and ratings of personnel. It states
in pertinent part as follows” “Within the last ten school days of each school year and not fewer than
four school days prior to the close thereof, the principal of each school shall give to each member
of hisher staff a signed statement characterizing hisher work as Satisfactory or Unsatisfactory.. . ..”
It also states that “A Certification of Unsatisfactory or Doubtful work shall be accompanied by
appropriate supporting data.”
Moreover, the Ratings Handbook Foreword specifically acknowledges the necessity of
documenting teacher evaluations. The Foreword states in pertinent part: “Although the responsibility
for evaluating pedagogical and supervisory staff may be implemented in accordance with a variety
of strategies, the importance of clear, concise documentation is fundamental to the process. Due to
the serious implications of adverse ratings and the imperative to provide satisfactory pedagogical
services to students, the need to document the evaluation of an employee’s performance is essential.
The admissibility of documents and written criticisms has been defined by contractual language,
grievance/arbitration decisions and rulings adjudicated by both the legal system and the State
Commissioner of Education. Hence, the principal must be aware of the type and nature of
documents which are germane to the evaluation of staff and the need for clear, objectively written
statements.. .”
Moreover, the Appeals Process component of the Handbook, appended as Exhibit “E,” of
the petition, promulgates the procedures for an appeal of an adverse rating for all pedagogical
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employees. In paragraph 2, underneath the heading “Rating Officer’s Response to the Appeal,” is
subdivision a, which states “[tlhe Appellant is to be furnished with a complete set of the
documentation used by the Rating Officer to support the reason(s) for the adverse rating.” Paragraph
3 states in pertinent part that the appellant “must file a full, written rebuttal to any of the reasons and
documents hnished ....,”
After a complete review of the Handbook, the Court finds that petitioner is correct in her
contention that respondents violated the rules contained therein, and that their final determination
was indeed arbitrary, capricious, and in gross error when they failed to follow their own regulations.
It is well settled that a U- rating may not be based on documents not shown to the petitioner in
advance of the hearing ( see Smith v. Board of Educ. of Citv School Dist. of City of New York, 18
Misc.3d 192, 196 [sup Ct. N.Y. County 20071; Budnick v. New York City Dept. of Ed,,supra ).;
It is a “fundamental administrative law principle that an agency’s rules and regulations
promulgated pursuant to statutory authority are binding upon it as well as the individuals affected
by the rule or regulation” ( Lehman v. Board of Ed. of Citv School Dist. of Citv of New York, 82
A.D.2d 832, 834 [2d Dept. 19811; see also Syauia v. Board of Ed. of Harpursville Cent. School
Dist., 80 N.Y.2d 531,535-536 [1992]; Frick v. Bahou, 56 N.Y.2d 777 [1982] ).
Here, it is crystal clear that respondents were absolutely required to document petitioner’s
adverse rating, which they failed to do. Indeed, they arrogantly concede that petitioner was never
provided with any documentation supporting her U-rating at the time the rating was given, or after
any of the alleged individual incidents of her deficient performance. In fact, respondents proffer the
circular argument that since no documents were produced, they cannot be in violation of their own
requirements to provide petitioner with documents to review and rebut to the U-rating, because there
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were no documents to provide to her. It is axiomatic that if petitioner did not receive any documents,
she could not refute them. In consideration of this, the Court has no alternative but to find that the
U-rating is arbitrary, capricious, in error of their own regulations and devoid of any rational basis.
The Court notes that it particularly finds audacious, respondents’ argument that the decision
of the Chancellor’s Committee to sustain the U-rating was based on the “thorough, convincing
testimony of Principal Cohen, and also on the fact that neither petitioner nor her advisor refuted the
Principal’s assertions that petitioner resisted and or refused support from the administration.” i
Therefore, in consideration of the foregoing, it is hereby
ORDERED that petitioner’s application pursuant to Article 78 of the CPLR, is granted; and
it is further
ORDERED that petitioner’s teaching evaludtion rating of “Unsatisfactory,” is annulled; and
it is further
ORDERED that petitioner shall serve a copy of this order on all other parties and the Trial
Support Office at 60 Centre Street, Room 158; and it is further
ORDERED that this constitutes the decision and order of the Court.
DATE: March 27,201 3
MAR 2 7 2013
Hon. Kathryn E. Freed
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